Past Issues

Previous issues of MJR&L are now available at the MLaw Journal Repository

 

Volume 23 (Winter 2018)

ARTICLES

Batson for Judges, Police Officers & Teachers: Lessons in Democracy From the Jury Box by Stacy L. Hawkins

In our representative democracy we guarantee equal participation for all, but we fall short of this promise in so many domains of our civic life. From the schoolhouse, to the jailhouse, to the courthouse, racial minorities are underrepresented among key public decision-makers, such as judges, police officers, and teachers. This gap between our aspirations for representative democracy and the reality that our judges, police officers, and teachers are often woefully under-representative of the racially diverse communities they serve leaves many citizens of color wanting for the democratic guarantee of equal participation. This critical failure of our democracy threatens to undermine the legitimacy of these important civic institutions. It deepens mistrust between minority communities and the justice system and exacerbates the failures of a public education system already lacking accountability to minority students.

But there is hope for rebuilding the trust, accountability and legitimacy of these civic institutions on behalf of minority citizens. There is one place where we have demonstrated a deeper commitment to our guarantee of democratic equality on behalf of minority citizens and exerted greater effort to that end than perhaps in any other domain of our civic life—the jury box. This paper recounts this important history and explores the political theory underlying the equal protection jurisprudence of jury selection. It then applies these lessons gleaned from the jury context to the constitutional defense of efforts to achieve greater racial diversity within the judiciary, law enforcement, and public education, all of which are as important to the legitimacy of our democracy today as the jury has been throughout American history.

Vulnerability, Access to Justice, and the Fragmented State by Elizabeth L. MacDowell

This Article builds on theories of the fragmented state and of human and institutional vulnerability to create a new, structural theory of “functional fragmentation” and its role in access to justice work. Expanding on previous concepts of fragmentation in access to justice scholarship, fragmentation is understood in the Article as a complex phenomenon existing within as well as between state institutions like courts. Further, it is examined in terms of its relationship to the state’s coercive power over poor people in legal systems. In this view, fragmentation in state operations creates not only challenges for access, but also opportunities for resistance, resilience, and justice. Focusing on problem-solving courts, and family courts in particular, the Article examines the intersection of human and institutional vulnerability within legal institutions and provides a framework for identifying ways to create greater access to justice. The Article contributes to state theory and the feminist theory of vulnerability, while providing a new way to understand and address an increasingly coercive state and its punitive effects on low-income people.

The Case Against Police Militarization by Eliav Lieblich & Adam Shinar

We usually think there is a difference between the police and the military. Recently, however, the police have become increasingly militarized – a process which is likely to intensify in coming years. Unsurprisingly, many find this process alarming and call for its reversal. However, while most of the objections to police militarization are framed as instrumental arguments, these arguments are unable to capture the core problem with militarization.

This Article remedies this shortcoming by developing a novel and principled argument against police militarization. Contrary to arguments that are preoccupied with the consequences of militarization, the real problem with police militarization is not that it brings about more violence or abuse of authority – though that may very well happen – but that it is based on a presumption of the citizen as a threat, while the liberal order is based on precisely the opposite presumption. A presumption of threat, we argue, assumes that citizens, usually from marginalized communities, pose a threat of such caliber that might require the use of extreme violence.

This presumption, communicated symbolically through the deployment of militarized police, marks the policed community as an enemy, and thereby excludes it from the body politic. Crucially, the pervasiveness of police militarization has led to its normalization, thus exacerbating its exclusionary effect. Indeed, whereas the domestic deployment of militaries has always been reserved for exceptional times, the process of police militarization has normalized what was once exceptional.

NOTES

Distant Voices Then and Now: The Impact of Isolation on the Courtroom Narratives of Slave Ship Captains and Asylum Seekers by Tara Patel

Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined that those captives claimed by a non-U.S. nation were slaves. The Court reasons that however “abhorrent” the slave trade was, the United States was obligated to recognize the rights of other nations to participate in it. In comparison, the Amistad concerned the fate of captives aboard a slave trade ship in which the captives committed mutiny, attempted to sail to Africa, but were captured by a U.S. vessel. The Supreme Court ordered them free despite the Spanish government’s claim that the captives were its property. Part I explores these different outcomes and argues that the absence of Antelope captives’ stories in the litigation process was partly due to the decision to isolate captives in slavery before their status was determined. In particular, it argues that this isolation affected the outcome of the Antelope by preventing captives from sharing their anecdotes and translating them to a format that would resonate with their legal counsel, the public, and judges. In contrast, the Amistad captives, while also detained, were situated close to those who could help them. They were able to transform their truths into a winning narrative for the court by understanding and leveraging the talents and expertise of counsel, and the biases of judges and the public.

Part II argues that 200 years later, a similar environment of isolation suppresses the stories of another group with undetermined legal status: asylum seekers. Although slave ship captives were forced into the country with chains, while asylum seekers are driven into the country by fear, the legal status of both groups in their respective time periods was undetermined upon their arrival. Both groups deserved, by legal and moral standards, the opportunity to present the truth behind their arrival and to prove their legal status. Part II argues that the detention of asylum seekers mirrors the isolation of the Antelope captives by removing detainees from those most able to help them develop a persuasive narrative truth. Detention silences important voices, aggravates ineffective representation, damages public perception, and ultimately harms case outcomes.

Fairness in the Exceptions: Trusting Juries on Matters of Race by Virginia Weeks

Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting the role of the jury and ultimately indicate that we trust juries to keep racism out of the courtroom in the exceptions to our normal procedures.

Volume 22.2 (Winter 2017)

INTRODUCTORY ESSAY

A Modest Memo by Yxta Maya Murray

A MODEST MEMO is a satire in the form of a legal memo written for President-Elect Donald Trump circa November 2016. It counsels Mr. Trump to obtain Mexican funding for a United States-Mexico “Wall” via United Nations Security Council sanctions. These sanctions would freeze remittances (that is, “hold them hostage”) until Mexican President Enrique Pen ̃a Nieto wired the United States sufficient monies for construction. The memo, which is entirely the product of my imagination and legal study, contemplates one of the many possible worst case scenarios threatened by the Trump presidency. Through the arts of law and literature, I aim to show how the rule of law may so easily buckle and splinter beneath the increasing tide of United States, as well as global, nationalism and racism. I take inspiration, of course, from Jonathan Swift’s A MODEST PROPO- SAL (1729), as well as the legal-literary experiments found in DERRICK BELL’S FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM (1993) and Richard Delgado’s Storytelling for Oppositionists and Others: A Plea for Narrative, 87 MICH. L. REV. 2411 (1989)

ARTICLES

Executive Disorder: The Muslim Ban, Emergency Advocacy, and the Fires Next Time by Abed Ayoub and Khaled Beydoun

On January 27, 2017, one week into his presidency, Donald Trump en- acted Executive Order No. 13769, popularly known as the “Muslim Ban.” The Order named seven Muslim-majority nations and restricted, effective immediately, the reentry into the United States of visa and green card holders from these states. With the Muslim Ban, President Trump delivered on a central campaign promise, and as a result, injected Islamophobia into American immigration law and policy.

The Muslim Ban had an immediate impact on tens of thousands of Mus- lims, directly affecting U.S. visa and green card holders currently outside of the country, while exacerbating fear and hysteria among immigrant and citizen Mus- lim populations within the country. This Essay memorializes the advocacy taken by the authors in the immediate wake of the Muslim Ban, highlighting the emer- gency legal and grassroots work done by the authors during a moment of national disorder and disarray, and within Muslim American communities, mass confusion and fear.

This Essay highlights efforts, coalition building, and the necessary resources that contributed to the effective defense and education of impacted Muslim popula- tions. It further examines the heightened vulnerabilities of and compounded inju- ries to often-overlooked Muslims at the intersection of race and poverty, as a consequence of Islamophobic policies such as the Muslim Ban.

The Resilience of Noxious Doctrine: The 2016 Election, the Marketplace of Ideas, and the Obstinacy of Bias by Leonard M. Niehoff and Deeva Shah

The Supreme Court has recognized the central role that free expression plays in our democratic enterprise. In his dissenting opinion in United States v. Abrams, Justice Holmes offered a theory of how free expression advances our search for truth and our cultivation of an informed electorate. That model—often called the “marketplace of ideas,” based upon the metaphor used by Holmes—has proven to be one of the most persistent and influential concepts in First Amend- ment jurisprudence.

The marketplace of ideas model essentially holds that free expression serves our democratic goals by allowing differing proposed truths and versions of the facts to compete with each other for acceptance. The theory maintains that the best ideas and the most reliable information will emerge and prevail. The well-informed elec- torate that results from this process will then make better decisions in our par- ticipatory democracy.

During the 2016 presidential election, however, it became apparent that a number of statements made by then-candidate Donald Trump proved difficult to rebut in the public dialogue, even though they were clearly and demonstrably false. Of particular concern, some of those statements fed into biases against and stereo- types of racial, ethnic, and religious minorities and women. This disinformation stubbornly resisted efforts at correction.

This Article discusses the marketplace of ideas model and its underlying assumptions about how human beings process information and make decisions. It then proceeds to explain, through recent social science research, why the dynamic envisioned by the marketplace of ideas theory often fails to provide an effective counter-narrative to statements that reinforce racial, ethnic, religious, and gender biases and stereotypes. The Article concludes with some necessarily preliminary and exploratory thoughts about potential curative measures.

Legacy in Paradise: Analyzing the Obama Administration’s Efforts of Reconciliation with Native Hawaiians by Troy J.H. Andrade

This Article examines how military automated surveillance and intelligence systems and techniques, when used by civilian police departments to enhance predictive policing programs, have reinforced racial bias in policing. I will focus on two facets of this problem. First, I investigate the role played by advanced military technologies and methods within civilian police departments. These approaches have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools and automates de facto penalization and containment based on race. Second, I will explore these militarized systems, and their effects, from an outside-in perspective, paying particular attention to the racial, societal, economic, and geographic factors that play into the public perception of these new policing regimes. I will conclude by proposing potential solutions to this problem that incorporate tests for racial bias to create an alternative system that follows a true community policing model

“Why Should I Go Vote Without Understanding What I Am Going to Vote For?” The Impact of First Generation Voting Barriers on Alaska Natives by James Thomas Tucker, Natalie A. Landreth, Erin Dougherty Lynch

This article explores the many forms of discrimination that have persisted in Alaska, the resulting first generation voting barriers faced by Alaska Native voters, and the two contested lawsuits it took to attain a measure of equality for those voters in four regions of Alaska: Nick v. Bethel and Toyukak v. Treadwell. In the end, the court’s decision in Toyukak came down to a comparison of just two pieces of evidence: (1) the Official Election Pamphlet that English-speaking voters received that was often more than 100 pages long; and (2) the single sheet of paper that Alaska Native language speakers received, containing only the date, time, and location of the election, along with a notice that they could request language assistance. Those two pieces of evidence, when set side by side, showed the fundamental unequal access to the ballot. The lessons learned from Nick and Toyukak detailed below are similarly simple: (1) first generation voting barriers still exist in the United States; and (2) Section 203 of the VRA does not permit American Indian and Alaska Native language speaking voters to receive less information than their English-speaking counterparts. The voters in these cases had been entitled to equality for 40 years, but they had to fight for nearly a decade in two federal court cases to get it.

NOTE

Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement by Lauren Latterell Powell

Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democ- racy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike.

In light of those failures, is felon disenfranchisement here to stay? This Note contemplates that question, beginning with a comprehensive analysis of the history of felon disenfranchisement provisions in America, tracing their roots to the large- scale effort to disenfranchise African Americans during Reconstruction, and identi- fying ways in which the racism of the past reverberates through practices of disen- franchisement in the present day. Applying this knowledge to understandings of prior case law and recent voting rights litigation, a path forward begins to emerge.

 


Volume 22.1 (Fall 2016)

Content titles link to full text on the MLaw Scholarship Repository.


 

ESSAY

The Tyranny of Small Things by Yxta Maya Murray

In this legal-literary essay, I recount a day I spent watching criminal sentencings in an Alhambra, California courthouse, highlighting the sometimes mundane, sometimes despairing, imports of those proceedings. I note that my analysis resembles that of other scholars who tackle state over-criminalization and selective law enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought, who believe that the study (or, in this case, practice) of literature will encourage calls for justice by disclosing buried, yet critical, human experience and emotions.

ARTICLES

Am I My Client? Revisited: The Role of Race in Intra-Race Legal Representation by Julie D. Lawton

This Article examines the challenges of intra-race legal representation for lawyers of color, law students of color, and those teaching law students of color by analyzing how the dynamics of the lawyer’s and client’s racial sameness impact legal representation. This Article brings together three strands of lawyering theory – the role of race in lawyering, critical race theory, and the role of the lawyer in intra-race legal representation. In doing so, this Article explores a number of provocative questions: Does being the same race as their clients make lawyers better legal representatives? Should lawyers of color embrace or resist race’s influence on intra-race legal representation? How do lawyers balance their desire to remain representative of their race with their responsibility to their clients? This Article also scrutinizes the role of the lawyer of color in intra-race legal representation by examining questions that are under-reviewed, such as: Do lawyers of color engage in the same explicit and implicit biases against their clients of color that lawyers of color similarly suffer? Do racial stereotypes tempt the lawyer to be more sympathetic towards, and understanding of, their same-race clients, or does it cause the lawyer to view the same-race client as an ‘other’? For lawyers of color and clients of color who seek same-race legal representation, this Article explores a difficult question— Is the lawyer of color representative enough of the race to be a representative for the client, particularly when the lawyer of color and the client of color live in different socio-economic environments? Given the resurgent examination of the role of race in interactions between persons of color and persons of power, this Article presents a timely opportunity to examine and question the role of race and the impact of divergent socio-economic status in intra-race legal representation.

Black Health Matters: Disparities, Community Health and Interest Convergence by Mary Crossley

Health disparities represent a significant strand in the fabric of racial injustice in the United States, one that has proven exceptionally durable. Many millions of dollars have been invested in addressing racial disparities over the past three decades. Researchers have identified disparities, unpacked their causes, and tracked their trajectories, with only limited progress in narrowing the health gap between whites and racial and ethnic minorities. The implementation of the Affordable Care Act (ACA) and the movement toward value-based payment methods for health care may supply a new avenue for addressing disparities. This Article argues that the ACA’s requirement that tax-exempt hospitals assess the health needs of their communities and take steps to address those needs presents a valuable opportunity to engage hospitals as partners in efforts to reduce racial health disparities. Whether hospitals will focus on disparities as they assess their communities’ health needs, however, is uncertain; preliminary reviews of hospitals’ initial compliance with the new requirement suggest that most did not. Relying on Professor Derrick Bell’s interest-convergence theory, this Article explores how hospitals’ economic interests may converge with interests in racial health justice. It presents two examples of interventions that could reduce disparities while saving hospitals money. The Article closes by identifying steps that health justice advocates, the federal government, and researchers should take to help, in Professor Bell’s words, “forge [the] fortuity” of interest convergence between hospitals and advocates for racial justice, and lead to progress in eliminating racial health disparities.

Tightening the OODA Loop: Police Militarization, Race, and the Algorithmic Surveillance by Jeffrey L. Vagle

This Article examines how military automated surveillance and intelligence systems and techniques, when used by civilian police departments to enhance predictive policing programs, have reinforced racial bias in policing. I will focus on two facets of this problem. First, I investigate the role played by advanced military technologies and methods within civilian police departments. These approaches have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools and automates de facto penalization and containment based on race. Second, I will explore these militarized systems, and their effects, from an outside-in perspective, paying particular attention to the racial, societal, economic, and geographic factors that play into the public perception of these new policing regimes. I will conclude by proposing potential solutions to this problem that incorporate tests for racial bias to create an alternative system that follows a true community policing model

NOTES

Pushing an End to Sanctuary Cities: Will it Happen? by Raina Bhatt

Sanctuary jurisdictions refer to city, town, and state governments (collectively, localities or local governments) that have passed provisions to limit their enforcement of federal immigration laws. Such local governments execute limiting provisions in order to bolster community cooperation, prevent racial discrimination, focus on local priorities for enforcement, or even to a show a local policy that differs from federal policy. The provisions are in the forms of executive orders, municipal ordinances, and state resolutions. Additionally, the scope of the provisions vary by locality: some prohibit law enforcement from asking about immigration status, while others prohibit the use of state resources to enforce federal immigration laws. Despite these variations, such local provisions intend to stifle cooperation with the federal government to adopt a more inclusionary local enforcement policy. Immigration policy is unanimously understood as a federal power, suggesting that federal immigration laws preempt the local governments’ provisions. Such preemption challenges have been brought to court, yet sanctuary cities remain largely untouched.

The July 2015 murder of Kate Steinle in San Francisco, CA, renewed political discourse on the topic. Juan Francisco Lopez-Sanchez, an undocumented immigrant who had been previously deported five times, was charged for the murder. Mr. Lopez-Sanchez’s long history of crime and immigration violations fueled critiques of city policies and put the federal spotlight back onto sanctuary cities. The House of Representatives has since passed H.R. 3009, which would deny some federal assistance to localities that enact provisions prohibiting officers from taking certain actions with respect to immigration. President-elect Donald Trump recently announced his bold plan to cancel all federal funding to such localities. Other immigration-focused measures continue to be introduced and discussed in Congress.

If passed, what practical impact would H.R. 3009, or similar legislation, have on local immigration enforcement? The bill still has considerable obstacles to overcome. However, enactment of such legislation has the p

How the E-Government Can Save Money by Building Bridges Across the Digital Divide by Alison Rogers

As government agencies and federal aid recipients begin to build a presence online, they must recognize that language accessibility is morally required, fiscally responsible, and compulsory under federal civil rights law. This Note explores statutes, federal policies, and case law that purport to protect the rights of limited English proficient (“LEP”) individuals in cyberspace. The Note suggests reforms, policies, and programs that should be adopted by federal aid recipients to ensure that LEP individuals have meaningful access to online services.

 

Volume 20.2 (Winter 2015)

Foreword: Reflections on Our Founding
Professor Guy-Uriel E. Charles ’96, Founder & Editor-in-Chief, Vol. 1
& Professor Luis E. Fuentes-Rohwer ’97, Founder & Executive Editor, Vol. 1

ARTICLES

There Are No Racists Here: The Rise of Racial Extremism, When No One is Racist
Professor Jeannine Bell ’99
Founding Member; Book Review Editor, Vol. 4   CV
Abstract:
At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions
of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas —the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces—social media and employment where slurs and epithets may be used frequently. The final portion of the Article briefly explores two forms of unacknowledged racial violence—violence directed at minorities who move to white neighborhoods and extremist killings. Our inaccurate approach to bias-motivated crime and the culture of protection around racist expression, the Article concludes, leaves American society vulnerable to the danger created by racial extremists.

Blackness as Character Evidence: The Strategic Use of Racial Stereotypes in Establishing an Individual’s Propensity for Violence
Professor Mikah K. Thompson   CV

Trajectory of a Law Professor
Professor Meera E. Deo ’00
Editorial Board, Vol. 5   CV
Abstract:
Women of color are already severely underrepresented in legal academia; as enrollment drops and legal institutions constrict further, race and gender disparities will likely continue to grow. Yet, as many deans and associate deans, most of whom are white, step down from leadership positions during these tumultuous times in legal education, opportunities have arisen for women of color to fill those roles in record numbers. However, there are individual and structural barriers preventing access to the leadership level. Significant hurdles have long prevented women of color from entering law teaching. Thus, this Article provides evidence to support the thesis that ongoing changes in legal education will likely continue to create barriers both to entry and advancement for women of color law faculty members and those who aspire to join legal academia. This Article draws from quantitative and qualitative analyses of data drawn from the Diversity in Legal Academia (DLA) project, a landmark mixed-method study of law faculty diversity, which utilizes an intersectional lens to focus on the experiences of women of color in legal academia while also incorporating those of white men, white women, and men of color. Empirical findings reveal that structural barriers (i.e., outright discrimination) as well as more indirect obstacles prevent women of color from joining legal academia in meaningful numbers and also preclude women of color who are already legal academics from taking on leadership positions. Law school administrators and policy makers should work against these structural and individual barriers to increase and improve faculty diversity at all levels. Greater diversity in legal academia generally, and leadership in particular, will not only provide greater opportunities for particular law faculty members, but will also have a positive effect on law students, legal education, legal academia, and the legal profession overall.

Justice and Law Journals
Professor Gabriel “Jack” Chin ’88   CV
Professor Adam B. Wolf ’01
Editor-in-Chief, Vol. 6   CV
Introduction:
What is the role for a law journal in advancing justice? What is the of a justice-minded practitioner in furthering legal scholarship? And what is the intersection—practically and normatively—for law journals, legal scholars, practitioners, and justice?
This brief Article attempts to lay a foundation for answering these important, but oft-neglected, questions. In the following conversation, a frequent contributor to the Michigan Journal of Race & Law (MJRL) and a former Editor-in-Chief of the Journal posit some ideas on how legal scholarship engages with justice, and how race-conscious practitioners can interact with race-conscious legal scholars.

Disparaging Trademarks: Who Matters
Professor Jasmine Abdel-Khalik ’00  CV
Abstract:
For more than a century, non-majority groups have protested the use of trademarks
comprised of or containing terms referencing the group—albeit for various reasons.
Under the 1946 Lanham Act, Congress added a prohibition against registering
disparaging trademarks, which could offer protection to non-majority groups
targeted by the use of trademarks offensive to members of the group. The prohibition
remained relatively unclear, however, and rarely applied in that context until a
group of Native Americans petitioned to cancel the Washington NFL team’s trademarks
as either scandalous, offensive to the general population, or disparaging,
offensive to the referenced group. In clarifying the appropriate test for disparaging,
however, the decision makers have overly analogizing the two prohibitions, rendering
the disparaging trademark prohibition less effective in protecting non-majority
groups from offensive trademarks.

Mainstreaming Equality in Federal Budgeting: Addressing Educational Inequities with Regard to the States
Elizabeth K. Hinson ’11
Executive Articles Editor, Vol. 16   CV
Abstract:
Great Society reformers targeted poverty as the defining characteristic for a novel federal education policy in the United States in 1965. Title I of the Elementary and Secondary Education Act (ESEA), reincarnated within the No Child Left Behind Act of 2001, distributes financial aid to disadvantaged students within public schools solely based upon students’ socioeconomic status. This Article does not dispute that financial resources improve student outcomes, but this Article argues that Title I’s funding formula is ineffective, and a new funding scheme – specifically, a mainstreaming equality funding scheme – must replace it. The implementation of this funding scheme will require Congress to acknowledge that poverty in the United States is not a mere set of behaviors and attitudes but is intricately linked to race and class.

Mainstreaming equality schemes require that public bodies assess the impact of their policies on equality of opportunity and monitor any adverse impact on the promotion of equality of opportunity. This Article describes how such a scheme would address disparities among students. Second, this Article argues that Congress should define beneficiary groups based on characteristics additional to socioeconomic status, including measures of cultural isolation and local tax revenue contributed to public education. Third, this Article establishes that a federal mainstreaming school funding scheme based on “layered disadvantage” and its multiplicative effects will both acknowledge and address long-time, covered attitudes about race, poverty and privilege in the United States and the ways in which those attitudes continue to enforce a paralyzed outcome, especially for African American students within public schools. Finally, by examining mainstreaming equality models implemented in the European Union, this Article considers in detail the methodology for conducting mainstreaming equality within a federal school funding scheme as implemented by Congress with respect to the individual states.

Functionally Suspect: Reconceptualizing “Race” as a Suspect Classification
Professor Lauren Sudeall Lucas  CV
Abstract:
In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For example, a possible equal protection violation would no longer be triggered by the mere act of racial categorization, but by classifications targeting groups characterized by a history of past discrimination, political powerlessness, or a trait that has no bearing on its members’ ability to participate in or contribute to society.By directly integrating the values underlying suspect classification into equal protection analysis, this Article attempts to replace the categorical use of race with a substantive approach that is less vulnerable to arguments grounded in colorblindness or postracialism and more focused on deconstructing existing racial hierarchies.

The Keyes to Reclaiming the Racial History of the Roberts Court
Professor Tom I. Romero II ’00   CV
Abstract:
This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today.

The racial history of the Roberts Court is centrally informed by the context and circumstances surrounding Brown v. Board of Education. For the Court, Brown symbolizes all that is wrong with the history of race in the United States— legal segregation, explicit racial discord, and vicious and random acts of violence. Though Roberts Court opinions suggest that some of those vestiges still exits, the bulk of its jurisprudence indicate the opposite. With Brown’s basic factual premises as its point of reference, the Court has consistently argued that the nation has made tremendous strides away from the condition of racial bigotry, intolerance, and inequity.

The Article accordingly argues that the Roberts Court reliance on Brown to understand racial progress is anachronistic. Especially as the nation’s focus for racial inequality turned national in scope, the same binaries in Brown that had long served to explain the history of race relations in the United States (such as Black-
White, North-South, and Urban-Rural) were giving way to massive multicultural demographic and geographic transformations in the United States in the years and decades after World War II. All of the familiar tropes so clear in Brown and its progeny could no longer accurately describe the current reality of shifting and trans-
forming patterns of race relations in the United States.

In order to reclaim the history of race from the Roberts Court, the Article assesses a case that more accurately symbolizes the recent history and current status of race relations today: Keyes v. School District No. 1. This was the first SupremeCourt case to confront how the binaries of cases like Brown proved of little probative value in addressing how and in what ways race and racial discrimination was changing in the United States. Thus, understanding Keyes and the history it reflects reveals much about how and in what ways the Roberts Court should rethink its conclusions regarding the history of race relations in the United States for the last 60 years.